What Is a Confidential Employee?

Trade secrets, also known as trade secrets. Refers to design information, procedures, product formulas, production processes, production methods, management know-how, customer lists, and source information that are not known to the public and can bring economic benefits to the right holder and have been taken confidential by the right holder. , Production and marketing strategies, technical information and business information such as the base and content of bids in bidding. Among them, not being known to the public means that the information cannot be directly obtained from public channels; it can bring economic benefits to the right holder and is practical, meaning that the information has determinable applicability and can provide the right holder with To the actual or potential economic benefits or competitive advantages; the right holders take confidentiality measures, including entering into confidentiality agreements, establishing a confidentiality system, and adopting other reasonable confidentiality measures.

Trade secrets, also known as trade secrets. Refers to design information, procedures, product formulas, manufacturing processes, manufacturing methods, management know-how, customers that are not known to the public, can bring economic benefits to the right holder, and have been taken confidential by the right holder.
Trade secrets can be divided into two categories: technical information and business information.

Trade secret holder

Right holder of trade secret
According to Chinese law, the right holders of trade secrets include the owners of trade secrets and the users of trade secrets with the permission of the owners of trade secrets. When trade secrets are violated, all persons and users have the right to demand that the infringer stop the infringement and bear legal responsibility.
Here we mainly talk about the attribution of technological secrets, because the attribution of operating secrets is usually easy to determine, and the attribution of technological secrets is more complicated. Here we mainly talk about the ownership of trade secrets in employment relations, entrusted development relations and cooperative development relations.
1. Ownership of trade secrets in an employment relationship
There are two cases of the attribution of trade secrets in an employment relationship, namely, the attribution of technical achievements of a post and the attribution of non-serviceable technological achievements.
Attribution of technical achievements
According to Article 326 of the Contract Law, job technical achievements are owned by the unit, and the unit owns and exercises the right to use and transfer the technological results.
The so-called job technical results refer to the technical results achieved by performing the work tasks of a legal person or other organization, or mainly using the material and technical conditions of a legal person or other organization. [3]
Vesting of non-job technical achievements
If the technical results are not directly related to the work tasks and responsibilities of employees, and are not completed using the material and technical conditions of the unit, they are non-job technical results.
The non-service technical achievements belong to the individual employees, and their right to use and transfer is owned and exercised by the individual who completed the technical achievements.
2. Ownership of trade secrets in a commissioned development relationship
In addition to independent research and development, companies often entrust other companies or scientific research institutions to research and develop production technology. The contract law stipulates that the ownership of commercial secrets in the entrusted development relationship shall be agreed by the parties themselves, that is, the parties may agree that the technical achievements completed under the entrusted relationship belong to the entrusting party or the entrusted party. If there is no agreement or the agreement is unknown, both the principal and the principal have the right to use and transfer, that is to say, they are jointly owned by the parties. However, before being commissioned to deliver research results to the client, it may not be transferred to a third party. In addition, unless otherwise agreed by the parties, the right to apply for a patent for a technical achievement completed in the course of development belongs to the principal.
3. Ownership of trade secrets in cooperative development relationships
Sometimes companies also cooperate with other companies and scientific research institutions to develop technology projects to learn from each other's strengths. The ownership of the trade secrets in a cooperative development relationship is agreed by the parties themselves, that is, the parties can agree that the technical results completed under the entrusted relationship belong to any party or parties participating in the cooperation. If there is no agreement or the agreement is unclear, it shall be jointly owned by all partners and jointly exercise the right to use, transfer and patent application.

Internal management of trade secrets

Advantages and risks of trade secret protection
Since trade secrets exist in all aspects of the enterprise, what are the advantages of choosing trade secret protection methods among the many methods of protecting intellectual property rights? How is it different from traditional methods of intellectual property protection such as patents.
1. Extensive advantages of protected objects. Some trade secrets are not protected by patent law. Trade secrets can be divided into two categories: technical information and business information. Obviously, business information cannot be protected by patents, and a portion of technical information can also be protected by patents. There is also a need to distinguish between the suitability of technical information for patent protection. For those structures and processes that are not directly reflected by the product, technology that cannot be obtained using "reverse engineering", processability, and formula technical information, it will be more appropriate to adopt a trade secret protection method.
2. Term advantage. The legal protection of various patents has a certain period of time, up to 20 years, and after entering the public domain, anyone can use it freely. The protection period of trade secrets is different. If it can be kept secret forever, it will enjoy an unlimited period of protection. The formula of Coca-Cola has been kept secret for more than a century. It has become the most famous example; The protection period ends accordingly.
3. Geographical advantages. Trade secrets have no territorial characteristics. Its owners can issue licenses to anyone in any country who is willing to obtain it. Intellectual property rights have regional restrictions. Intellectual property rights in one country do not necessarily have corresponding rights in another country. , But your information is public worldwide.
4. Confidentiality advantage. Trade secrets are not public; patents, trademarks, and copyrights are public. Trade secrets are only known to a few people, and once infringed, they are easier to find. However, patents are published in the world, and infringements have occurred in some corner of the earth, which is difficult to find in time.
5. Lower protection costs. Patent application is a long and costly process, and trade secrets do not need to perform registration and other procedures. They only need to take reasonable confidentiality measures. It can be said that it is an economic and practical means to protect intellectual property rights.
Of course, while the protection method of trade secrets has advantages, there must be some defects. Although a trade secret is an intellectual property in nature, it is different from traditional intellectual property and is a special form of intellectual property.
Mainly manifested in:
A. The exclusivity of trade secrets does not depend on any special law, but only actually exists in accordance with confidentiality measures. Once disclosed, they are no longer protected; patents, trademarks, and copyrights are covered by patent law, trademark law Copyright law directly conferred that it cannot be generated naturally by the actions of the parties, and unlike commercial secrets, if there is no confidentiality, there is no right to so-called secrets. Therefore, in order to maintain confidentiality, enterprises must require a set of confidentiality measures, otherwise the risks are great.
B. Trade secrets cannot be used against a third party who independently develops the same secret technology and knowledge. Any third party who independently acquires the same technical knowledge can use and transfer this knowledge; while other intellectual property rights are generally exclusive, It can be against anyone, and industrial property rights are particularly evident.
Therefore, there is a certain risk in the protection of pure trade secrets. We believe that the most appropriate way is to comprehensively use traditional intellectual property protection and protection of trade secrets to comprehensively protect corporate intellectual property rights. Suppose the company develops a new product. Analysis by technical staff and legal experts shows that one of the innovations is easy to be decrypted by reverse engineering after the product is put on the market, while the others are information such as process procedures and structures that are not easily reflected by the product. The innovation points apply for patent protection, and the latter applies protection of trade secrets. Further, once this product containing trade secrets has gained a good reputation and occupied the market, trade secrets can be protected by trademark law in some cases. Even if others use the same method or formula to make the same product, it cannot By using the registered trademark of the best-selling product, it is not possible to squeeze the market of the best-selling product and make a profit. For example, the famous Coca-Cola beverage, even if someone analyzes its formula and makes the same beverage, it still cannot use the "Coca-Cola" trademark and cannot easily enter the market and open up sales. Therefore, the trademark law also plays a certain role in protecting trade secrets. Of course, this is a relatively perfect assumption, but it can give our company a little inspiration.
Ways to leak trade secrets
To sum up, the leakage of trade secrets includes the following six aspects:
1. Leaving or leaking employees
Driven by improper interests, employees or employees may take away trade secrets after leaving the group collectively; unfaithful employees may also provide trade secrets to others. A large proportion of employees in enterprises leak trade secrets. According to relevant investigations, 30% of employees leaked trade secrets and 28% were retired employees.
2. Industry (Business) Spy
Some companies believe that the most effective shortcut to research and development is to obtain competitors' trade secrets. This concept makes more and more companies, even companies with good international reputation, use industrial (business) spies to illegally obtain competitors' trade secrets. For example, Tokugawa Tanaka, the chief accountant of the Japanese company Pooh, went to the hospital to see his teeth, and unscrupulous competitors even bought doctors and installed micro-eaves in his dentures. Pooh's financial secrets became the "killers" of the other party, were extremely passive in the competition, and eventually went bankrupt.
3. Receiving negligence during interviews, visits, inspections, and internships
Interviews, inspections, etc. help to improve the public image of the company, but at the same time it is also an important channel for trade secrets to be kept secret. There are many examples of this. For example, an engineer from a certain country visited the aircraft manufacturing plant with sticky shoes to obtain metal flakes for chemical analysis. Another example is the long-bearded straw mat produced in China, which has a long history and was a tribute to the emperor during the Qing Dynasty. Since 1953, it has been exported to Japan, Hong Kong, Malaysia, Italy and other countries and regions. At the Leipzig World Craft Fair, it was hailed as "China's unique crafts" and won a lot of foreign exchange for the country. In the early 1980s, a Japanese company sent people to visit the entire production process, and made a detailed understanding of each process and took photos. Soon after, Japan ceased to import dragon beard mats from China, and at the same time competed with me in the international market, gradually gaining a monopoly position, eventually leading to the collapse of all of our export manufacturers.
4. Suppliers and customers
Companies often need to disclose certain secrets of products, parts, materials, production equipment or processes to suppliers or customers. And these suppliers or customers often have to do business with competitors or potential competitors of the company. Therefore, even the most trustworthy supplier may be a potential source of danger in leaking trade secrets, especially the suppliers of key links. As far as customers or prospective customers are concerned, they may also leak the company's trade secrets to competitors, or change the users of trade secrets into competitors of the company.
5. Public publications and lectures on technical writings
Technical writings and lectures are free information and are the main source of free information. Many professionals are willing to tell their technical colleagues about their most advanced research results. This is natural, because it means academic standing and professional prestige in the field. However, it also means that the information has entered the public domain and companies can never claim ownership of the trade secret. For example, in the early 1980s, China's hybrid rice technology was at the leading level in the world, but because of this scientific and technological achievement, more than 50 papers have been published in public magazines, making this technology "secret" lost.
6. Advertising and trade shows
In a general sense, advertising exhibitions and trade secret protection often have a dilemma. On the one hand, it is necessary to promote the latest and most advanced technology developed by enterprises for promotion; on the other hand, these advertisements may damage the business secrets of enterprises. Explaining and describing newly developed technologies through advertisements or exhibitions is a form of disclosure to the public. Legally speaking, it is equivalent to increasing the risk of leaking trade secrets.

Trade secret management measures

In view of the above-mentioned various ways and methods of leaking trade secrets, this article believes that enterprises should take systematic protection measures from four aspects: organization system, trade secret and carrier management, secret personnel management and auxiliary measures.
1. Establish and improve organizations and related systems
A formal and efficient specialized department for the protection of trade secrets is a prerequisite for effective protection of trade secrets. Business leaders should attach great importance to the important role of trade secrets in business operations and the serious consequences of loss of confidentiality. First, establish a guarantee from the organization and set up a special department or a special department under the original department such as the manager's office, the intellectual property department, and the legal affairs department. The team is responsible for the identification of trade secrets, the development and implementation of protective measures.
A reasonable and complete confidentiality system can clarify employees' obligations to the enterprise, and enable employees to have corresponding codes of conduct, which is conducive to actual compliance and proof in complaints. The formulation of confidentiality rules and regulations must be legal, reasonable, and practicable. If the rules and regulations are too trivial, it may cause work obstacles and affect business activities. On the contrary, it's too simple and useless.
Generally, enterprises should consider at least the following aspects when formulating confidentiality rules and regulations: the scope of trade secrets; the managers and responsibilities of trade secrets; the management of trade secrets archives; the declaration and review of trade secrets; the obligation to keep secrets of trade secrets;
2. Management of trade secrets and their carriers
First, determine the scope of the trade secret. Enterprises should determine the types and scope of trade secrets within the enterprise based on the four legal characteristics of trade secrets, so as to increase vigilance and determine various measures to be taken. The four legal characteristics of the trade secrets described above sound complicated. In fact, companies do not need to make such detailed arguments when they are specifically defined. Generally speaking, as long as the technology is independently developed by the enterprise and the business strategy is independently formulated, Can be protected as a trade secret.
Second, determine the level of trade secrets. Laws and regulations have no provisions on the classification of trade secrets, and the principles of protection and relief of any trade secret by the law are consistent. Whether to classify the confidentiality of trade secrets depends entirely on the needs of the company's confidential work and the wishes of the right holders. In terms of the principle of enterprise confidentiality prevention, classifying and determining the level of trade secrets is conducive to the hierarchical management of trade secrets, and it is conducive to highlighting the key points and ensuring the security of core secrets of enterprises. For Chinese enterprises, the familiar and simple classification is three levels of "top secret", "confidential" and "secret".
Finally, strengthen the management of confidential documents. Secret documents refer to materials that record the contents of trade secrets in the form of text, graphics, audiovisual, and other records, including official documents, books, correspondence, drawings, statements, disks, films, slides, photos, audio tapes, and so on. The carriers of these trade secrets must be strictly managed to limit their circulation and reproduction.
3. Management of secret personnel
The protection of trade secrets is most important to people, so it is important to strengthen the management of secret personnel.
(1) Sign confidentiality agreements with employees. This is not only one of the best ways to protect trade secrets, but also often an important factor for law enforcement agencies to judge whether confidentiality measures are reasonable. Without a confidentiality agreement, the company's trade secrets may not be protected by law. Confidentiality clauses can be added to the labor contract, or a confidentiality agreement can be signed separately, requiring employees to comply with confidentiality obligations. The signing of a technology confidentiality agreement should follow the principles of fairness and reasonableness. Its main contents include: the content and scope of confidentiality, the rights and obligations of both parties, the duration of confidentiality, and the liability for breach of contract. Generally speaking, the content of employees' confidentiality obligations to the enterprise includes: the obligation to keep trade secrets; the obligation to use trade secrets correctly; the obligation to obtain the results of trade secret job duties in a timely manner; the obligation not to use the unit's trade secrets to establish their own business; The obligation to use trade secrets to work for a competing business, and so on. Moreover, the confidentiality agreement and confidentiality clause are not terminated by the termination of the labor contract or labor relationship, and they will remain valid for a certain period of time after the employee leaves the company.
(2) Strengthen employee confidentiality education. In addition to signing confidentiality agreements, enterprises should further strengthen confidentiality education for employees, so that employees understand the corporate culture, the scope of confidentiality, working rules, the consequences of breach of contract, etc., so that employees recognize the importance of confidentiality work, prevent foreign visitors, Leaks in consulting or negotiating business.
(3) Complete personnel data of employees. An enterprise should establish and improve personnel personnel information, such as the employee's education, expertise, and whether there are inventions. On the one hand, the enterprise can use it as a reference to decide to assign employees to appropriate positions. On the other hand, when there is a dispute between the employee and the trade secret in the future At the same time, it can also be used by law enforcement agencies to determine whether employees have creative abilities and whether to steal company secrets. In addition, the company should also specifically inform and document the scope of the employees' duties in order to avoid unnecessary disputes over whether they will constitute technical achievements in the future.
(4) Management of departing employees. For employees who have been exposed to trade secrets and are about to be terminated, apart from requiring them to complete the relevant transfer procedures and thoroughly collecting all the items borrowed and borrowed by the employee so that the various businesses undertaken by the employee can continue to run smoothly, To reiterate the obligation of employees to continue to protect trade secrets after leaving the company, it is best to sign a detailed and specific confidentiality agreement based on the specific circumstances of the employee's grasp of the trade secrets, because generally the original confidentiality agreements, especially the confidentiality clauses Most are more general. If necessary, also communicate with this employee's future employer, and separately or together, explain to the ex-employee and his new employer the legal responsibility for maintaining trade secrets.
(5) Sign a competition prohibition agreement with senior management . At this stage, trade secret disputes are mainly manifested by employees taking away the employer's trade secrets and engaging in competitive production and operation with their employers. In order to prevent competitors from enticing employees to change jobs, a competition prohibition agreement has become a better choice. The prohibition of competition is the prohibition of competition according to the law or the employer through labor contracts and confidentiality agreements to prohibit workers from concurrently working in the unit that competes with their unit during their tenure, or prohibit them from working in the unit after leaving the original unit. Units that compete with the original unit, including the creation of an enterprise with the same business scope as the original unit.
The core content is to stipulate that the resignation should not use the trade secrets held by the original unit to engage in unfair competition in this industry. Obviously, the competition prohibition agreement conflicts with employees' freedom of choice. The prohibition of competition is based on an important principle of trade secret protection, namely the principle of unavoidable disclosure. This is a principle established in US case law. According to this principle, if an employee is employed by a new employer, the former employer's trade secrets will inevitably be used, and it is legal and necessary to issue a competition prohibition order. China's law does not quote this principle, but stipulates a competition prohibition agreement. China's "Labor Contract Law" allows enterprises to sign competition prohibition agreements with employees. [4] However, in order to prevent enterprises from using the competition prohibition agreement to restrict employees' freedom of job selection, many restrictions are also imposed on the competition prohibition agreement. When signing the competition prohibition agreement, the following four points should be paid particular attention to: First, the applicable personnel should not be excessive. Because the competition prohibition agreement restricts the freedom of employment of the departing employees, it is generally only applicable to key confidential personnel such as senior management and technical personnel of the enterprise, and not to ordinary employees with weak employment competitiveness. Second, the scope of the ban on employment should not be too wide. There must be restrictions, limited to industries closely related to the trade secrets that employees are in contact with, and too wide is unreasonable. The third is to set a reasonable limit period. The duration of the competition prohibition agreement cannot exceed two years, and some compensation must be paid. During the period of prohibition of competition, the enterprise shall provide certain compensation to the employee who has left the company. Generally, the monthly salary shall not be less than 30% of the average salary of the employee during the 12 months before the employee leaves the company. If these four provisions are unfair, it may result in the competition prohibition agreement being deemed invalid.
It is also important to emphasize that the prohibition of competition is only a restriction on the employment of secret personnel, and cannot be simply equated with the obligation of confidentiality. The prohibition of competition is expired or found to be invalid, which only means that the restricted person is no longer restricted by the direction of choosing a job, and does not mean that the obligation of confidentiality is not exempted. After the competition mechanism agreement is terminated, employees still need to fulfill their obligations of confidentiality, and cannot disclose or use the business secrets of the original unit.
(6) Management of third parties such as suppliers and customers. Enterprise trade secrets often involve third parties such as licensees, suppliers, customers, manufacturers, sales agents, and architects, engineers, consultants, contractors, and reinsurers who provide products or services to the company. These people are important partners in the business and are often an important way to disclose trade secrets. Therefore, it is extremely important to require a third party who needs to know the trade secrets to sign an appropriate confidentiality agreement. It also clearly shows the company's ownership of the relevant documents, as well as the exclusivity and confidentiality of the documents and the information they contain. At the same time, in the economic contract signed to the outside world, the confidentiality clause is stated, and the other party is required to ensure that the business secrets of the enterprise grasped during the performance of the contract are not leaked, otherwise it will bear the breach of contract and compensation. China's contract law also stipulates the obligation of confidentiality as an important contractual obligation. Both parties to the transaction must keep each other's business secrets in accordance with the agreement and transaction practices. Moreover, this obligation of confidentiality is comprehensive, including the obligation of confidentiality before the contract, and contract performance. The confidentiality obligation in the contract, the confidentiality obligation after the performance of the contract.
4. Other auxiliary measures
(1) Enterprise security. It is necessary to delineate confidential areas, strengthen security measures within the confidential areas, determine measures such as door guards, locks, restrict employee access to areas, password keys or password passes, and change passwords frequently, which will help prevent trade secrets Theft.
(2) Control visits and internships. Prohibiting visits or internships may not be necessary, but certain controls are certainly an important measure to protect trade secrets. All visits should avoid sensitive areas, do not explain in detail, and do not demonstrate the manufacturing process. When necessary, visitors are required to sign confidentiality agreements when visiting trade secret equipment.
(3) Management of key parts. The generation, processing, storage, and use of trade secrets are the focus of confidentiality management. Enterprises should determine the most centralized and core departments or parts according to the actual situation of the production, use and storage of trade secret information, and report within the enterprise so that the managers and the managed persons can be sure of what they know. These departments or parts are roughly product technology development and research departments, trade secret information centralized processing sites, computer centers and databases, trade secret information centralized storage sites, corporate planning departments, finance departments, and production sites where trade secret information appears. The key parts of trade secrets should have necessary monitoring measures. Such as: control of "red line zone" in key parts, electronic monitoring alarm, personnel identification system, special permission approval system for entering and exiting personnel, entering and exiting identity cards, expressing prohibition of visiting areas and prohibiting behaviors, and prohibiting the entry or exit of items. Inspection measures, clearance of work surfaces and computer systems, etc. before secret personnel leave the work site.
(4) Prevent publication or advertisement or exhibition. Employees must be kept in mind, attend conferences in professional fields, publish academic writings, lectures, and often be among peers with a deep professional background in the field. These peers are often able to capture the implied meaning between the lines of information. As a result, information that some employees consider trivial and insignificant is likely to be the key piece of information that competitors have been seeking. Therefore, employees should publish professional articles, published works and related lectures, etc., and appropriate supervision and control should be conducted when necessary. Similarly, education, inspection and control should be conducted for activities that may be compromised, such as advertisements and exhibitions, in order to prevent confidentiality.

Trade secret infringement

Types of Trade Secrets Infringement According to Chinese laws, the types of trade secret infringement activities are as follows:
1. The act of obtaining trade secrets by improper means
Article 10 of the Anti-Unfair Competition Law first prohibits "acquiring the trade secrets of the right holder by theft, inducement, coercion or other improper means", that is, it is illegal to obtain the trade secrets by improper means. Don't ask. Of course, from a practical point of view, simply obtaining trade secrets is generally not the purpose of acquiring people, but mostly for further purposes such as use and disclosure. For example, hiring a person who holds or understands the business secrets of the right holder with high salaries or other favorable conditions to obtain, use, or disclose the business secrets of the right holder is an act of obtaining business secrets by unjust means of inducement and is prohibited by law.
2. Disclosure of improperly obtained use of trade secrets
This kind of behavior refers to the act of disclosing, using, or allowing others to use the business secrets of right holders obtained through improper means, which is expressly prohibited by Article 10 of the Anti-Unfair Competition Law.
Disclosure here refers to the spread of obtained trade secrets to others, including disclosure of trade secrets to specific people, a small number of people, and disclosure of trade secrets to the community (unspecified people) under the condition that the other party is required to keep confidential.
Use refers to the use of commercial secrets by the acquirer in his own production and operation.
Allowing others to use trade secrets means that the acquirer makes the trade secrets available to a third party for use, either for a fee or for free.
3. Acts of legitimate but improper use and disclosure of sources
Refers to acts that violate the agreement or the right holder's requirements for maintaining business secrets, improperly disclose, use, or allow others to use the business secrets in their possession. This kind of behavior includes two cases. One is that units and individuals who have a business relationship with the right holder violate the contract or violate the requirements of the right holder to keep business secrets, and disclose, use, or allow others to use the right holder's business secrets. Second, the employees of the right holder (including those who left and worked) violated the contract or violated the requirements of the right holder to keep business secrets, and disclosed, used, or allowed others to use the right holder's business secrets.
4. Acquisition, use, and disclosure by malicious third parties
If a third party knows or should know about the first several types of violations of trade secrets, it still obtains, uses, or discloses the business secrets of the right holder there, which constitutes an infringement of the business secrets of the right holder. Knowingly is a malicious state and knowingly is a state of gross negligence, which refers to situations that should be known but not known because of gross negligence.

Trade secrets safeguard rights

An enterprise's trade secrets have been violated. Depending on the situation, it should seek legal protection from different departments. There are four main ways:
First, apply to the arbitration institution for arbitration settlement.
An enterprise's trade secrets have been infringed. If a contract has been signed between the enterprise and the infringer and the parties have reached an arbitration agreement voluntarily, they can apply for arbitration to the arbitration agency agreed in the arbitration agreement between the two parties. The arbitration implements a system of final arbitration. After the ruling is made, it is not possible to apply for arbitration or bring a suit in a people's court for the same dispute. Article 58 of the Arbitration Law states that if the parties have evidence to prove that there is no arbitration agreement, that the arbitral award does not fall within the scope of the arbitration agreement, that the arbitration commission has no power to arbitrate, that the composition of the arbitral tribunal or the arbitral procedure violates legal procedures, and that the evidence on which the award is based is Forgery, the other party has concealed evidence sufficient to affect a fair award, the arbitrator has committed a wrongful act, etc., may apply for revocation of the award by the intermediate people's court where the arbitration commission is located. [5]
In the case of disputes between enterprises and employees (including those who have left) due to commercial secrets or employees who have signed labor contracts, if the time limit has not expired, they will switch jobs without authorization, take away the business secrets of the enterprise, and violate the interests of the enterprise. Apply to a local labor dispute arbitration committee for labor arbitration. Labor arbitration is a necessary procedure. If you are not satisfied with the arbitral award, you can bring a suit in a people's court within 15 days.
Second, make a complaint to the administrative department for industry and commerce.
Article 3 of China's Anti-Unfair Competition Law stipulates that the administrative department for industry and commerce of the people's government at or above the county level shall be responsible for the supervision and inspection of unfair competition. For those who infringe on trade secrets, the industrial and commercial authorities shall order the suspension of illegal acts and may impose a fine ranging from 10,000 yuan to 200,000 yuan according to the circumstances.
After an enterprise's trade secrets have been violated, it may file a complaint with the industrial and commercial authorities at or above the county level, and provide evidence of trade secrets and infringement. The processing cycle of the industrial and commercial authorities is short, which can quickly stop infringements, without charge, and low cost. However, the industrial and commercial authorities only impose administrative penalties on infringers, do not rule on infringement compensation, and only mediate. However, after the administrative department of industry and commerce makes a decision on administrative punishment, the right holder can sue to the court according to the decision on punishment and demand compensation from the infringer. The decision on administrative punishment has legal evidence.
Third, file a civil lawsuit with the people's court.
According to the "General Principles of Civil Law" ("General Principles of Civil Law"), "Contract Law", "Anti-Unfair Competition Law", "Civil Procedure Law" and other legal provisions, the business secrets of an enterprise have been violated, and a civil lawsuit can be filed directly with the people's court. To sue a people's court, to clarify the jurisdiction of the people's court, generally speaking, the people's court where the defendant lives or the people's court where the tort is committed. If a contract is concluded, the people's court where the defendant lives or where the contract is performed shall be sued.
Fourth, criminal procedure.
Violations of trade secrets, if serious, can constitute a crime. According to the Criminal Law, if a criminal act that violates trade secrets causes significant losses to the right of the trade secret holder, he or she shall be sentenced to fixed-term imprisonment or detention of not more than 3 years, or a single fine; if it causes particularly serious consequences, the punishment shall be not less than 3 years but not more than 7 years Term of imprisonment and fines. Criminal proceedings include three types of proceedings, namely public prosecution, private prosecution, and incidental civil proceedings.
When a violation of trade secrets constitutes a crime, the right holder shall report the case to the public security organ, and the public security organ shall file a case for investigation and the case concluded shall be transferred to the people's procuratorate at the same level. If the procuratorate believes that the facts are clear and the evidence is sufficient, criminal responsibility shall be investigated to the same level The people's court filed a public prosecution.
For cases where the criminal act has not caused serious harm to social order and national interests, the right holder may file a criminal self-prosecution in court.
In criminal public prosecution or private prosecution proceedings, the right holder may file an incidental civil action and ask the defendant to compensate him for the losses he has suffered.

Trade Secrets Act

Trade secret law protects both the idea and the specific form in which it is expressed. The right under trade secret law is a right to prohibit others from using the information, while the copyright law grants copyright owners the right to prevent others from copying their work.
To be protected, trade secrets must first be kept secret, and when disclosed to a third party, the third party must be required to comply with the obligation to keep secrets. However, what the employee learned during the hiring process has become his general skills, and information related to customers, prices, and business methods does not fall into the category of confidentiality. Furthermore, the court will intervene when an employee uses the employer's trade secrets without authorization. Trade secrets are certain private property of the employer, such as a secret production method.

Trade secret disclosure

From the perspective of the actor who disclosed the trade secret, both the right holder's own disclosure and the third party's disclosure.
There are mainly the following ways for everyone to disclose:
(1) Everyone voluntarily releases trade secrets to the public . For whatever reason, as long as the originally confidential information is made public, trade secrets will lose their "unknown" nature and will no longer be trade secrets. For example, the contents of trade secrets are published publicly and exhibited at exhibitions.
(2) The right holder changes the protection of intellectual property rights by applying for a patent. The application for a patent is conditional on the disclosure. When a right holder applies for a trade secret for a patent, he will go through the process of issuing an announcement. Once announced, it is no longer possible to maintain trade secrets, whether or not a patent can eventually be obtained.
(3) The right holder publicly sells commodities containing trade secrets . If its trade secrets are easy to derive from the goods it sells, and the owner sells the goods without restrictions, others may obtain the trade secrets by observing the goods, reverse engineering, etc., and the trade secrets may be leaked as a result.
(4) Improper security measures. For example, no confidentiality system has been specified, no confidentiality seal has been stamped on confidential documents, no important commercial secrets have been physically isolated, and partners have not been required to sign confidentiality agreements.
The destruction of trade secrets caused by the actions of third parties is mainly the following two:
(1) Disclosure due to a third party's tort.
(2) The legal disclosure of a third party . After a third person disclosed the trade secrets obtained through independent discovery and reverse engineering, the same trade secrets of others were destroyed.
The Opinions of the Higher People's Court of Jiangsu Province on Issues Concerning the Trial of Trade Secret Cases (Su Gao Law Examination Committee [2004] No. 3) also contains more detailed regulations on the way public trade secrets are made. The way the right holder causes the trade secret to be disclosed is:
(1) Voluntary disclosure to the public;
(2) applying for a patent and making an announcement;
(3) Public sale of products containing trade secrets, and others can easily obtain the trade secrets through observation and other means;
(4) The secrecy measures are obviously improper.
The way a third person causes trade secrets to be disclosed is:
(1) open torts;
(2) Opened after being obtained through legal means such as independent development and reverse engineering.

Five Provisions on Trade Secrets

Trade secrets in the United States are unique information that is valuable to the company's business activities, while others know nothing about it. Generally, company trade secrets are protected by state and federal laws.
1. Trade secrets must be confidential information within the company
In other words, it is certain information about the company's operating activities, and the outside world, including competitors, is unaware of it, unless these people obtain this information through improper means. Such information is legally classified as trade secrets and protected by law.
Therefore, in business activities, company executives must pay great attention to the types of information that the company provides to the outside world or third parties. If the company information is voluntarily disclosed to potential customers, or posted on the Internet, or provided to associations of business organizations, or to people outside the company, such information will not be available unless these recipients are signing confidential documents. Will be protected by trade secret law.
2.Use warning signs
In many cases, supervisors must use warning signs such as trademarks or graphic labels on confidential documents to alert users. Supervisors can put a rubber stamp on each page of trade secret information, or they can write the word "confidential" in the header and footer of the document.
If you want to issue a formal and detailed warning, you can consider writing a warning on the cover of a confidential document: This information or document is confidential and belongs to the company and its subsidiaries, and is protected by relevant laws and the 1996 Federal Economic Espionage Act. If you steal, obtain, own or reproduce this information, you will be sentenced to a maximum of 15 years in prison and a fine of up to $ 5 million.
3. Reduce physical or electronic access to trade secrets
As far as possible, the means to obtain confidential information are considered. There is preferably only one way to obtain confidential information. The person in charge can set a password for the computer that stores the confidential information. At the same time, the confidential information must be divided into several parts and stored separately. Remember to delete the confidential information on the computer's hard disk and related electronic storage after use.
4. Continue to have relevant personnel sign confidential documents
As mentioned above, if you voluntarily disclose confidential information to outsiders, you must have the other party sign a confidentiality agreement. In addition, executives should also form the habit of regularly signing confidentiality agreements with company employees, consultants, independent dealers, and potential business partners to prevent those who have access to trade secrets from leaking information.
5. Strict supervision and implementation
In accordance with the above requirements, it is not completely guaranteed that confidential information will not be leaked. The company's managers must also strictly enforce implementation. If you have the above-mentioned confidentiality regulations, but did not implement them seriously, once the confidentiality is leaked, the relevant laws will greatly reduce the compensation for the losses suffered by the company.

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